Thursday, 16 August 2012
Electoral Matters Committee; Report
On behalf of the Joint Standing Committee on Electoral Matters, I present the committee's advisory report on the Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012.
In accordance with standing order 39(f) the report was made a parliamentary paper.
by leave—The Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012 amends postal voting arrangements, increases nomination deposits for Senate and House of Representatives candidates, increases the nominators required for unendorsed candidates and Senate groups, changes the unsound mind exemption from enrolment and voting, and makes minor technical amendments to the Commonwealth Electoral Act.
The committee supports the changes in schedules 1 and 2 of the bill. However, it has some concerns about the schedule 3 changes to the unsound mind provisions and has recommended certain amendments. Schedule 3 proposes changes to the unsound mind provision in subsection 93(8) of the Commonwealth Electoral Act. That section exempts a person from enrolling and voting if they are incapable of understanding the nature and significance of enrolment and voting. That is the proposed section. Thousands of people are using the provision each year. They may be facing temporary or ongoing mental health challenges that compromise their capacity to cast a vote. It is generally someone close to the affected person who will seek to have that person exempted under subsection 93(8). The Australian Electoral Commission cannot initiate a removal from the roll on these grounds.
The committee is sensitive to community concerns that the phrase 'unsound mind' is offensive and that the provision prevents some people from voting. Given Australia's system of compulsory enrolment and voting, it is useful to have a mechanism to address this to protect the integrity of elections and assist those who are unable to meet their enrolment and voting obligations.
Based on the evidence received, the committee is not satisfied that there is any pressing need to remove or substitute the phrase 'unsound mind'. It is an established phrase with meaning in the law. The committee has recommended retaining the phrase 'unsound mind' in subsection 93(8). To remove it risks broadening the exemption and potentially disenfranchising more electors.
The committee also supports the current requirement for a certificate from a medical practitioner. With other professions, such as psychiatrists and social workers, making these determinations it could unfairly disenfranchise people if these additional qualified people are less stringent in judging a person's capacity to understand the significance of enrolment and voting.
I now turn to schedules 1 and 2 of the bill, which relate to postal voting and nomination requirements. In referring the bill, the Selection Committee noted that the bill was ambiguous in relation to the specific changes being made to processing postal vote applications. In its review of the bill the committee found that a number of the changes relating to postal voting largely reflect existing AEC practices. These changes will simply ensure that the Electoral Act correctly outlines the processes that have evolved to help ensure the efficient processing of postal vote applications and distribution of postal vote packages.
Most PVAs are already processed centrally from PVPs distributed through the AEC's central print system—93 per cent for the 2010 federal election. At the next election there also will be the option to apply online. These online applications will be centrally processed. The Divisional Returning Officer is no longer the main conduit for postal voting activities. However, the Electoral Commissioner will continue to delegate his powers in relation to postal votes to Divisional Returning Officers and other AEC officers. This change will not affect the way in which individuals and political parties interact with their DROs on postal voting matters. As is the current practice, political parties will still be able to distribute PVAs with campaigning material, receive completed PVAs and forward them to the relevant DRO.
In the case of issuing PVPs to a person rather than specifically to an elector, the AEC indicated that it already issues PVPs to unmatched applicants who are not found on the electoral roll. The return ballot papers are then subject to further scrutiny and admitted to the count only if the person is verified to be an elector. This is in keeping with the approach taken with declaration voters.
While having a variety of candidates is a feature of Australia's democracy, large numbers of candidates means an expanded ballot paper and it increases the complexity of the voting task for electors. Setting appropriate nomination requirements is one way to help ensure that prospective candidates appreciate the seriousness of their participation in the electoral process, if they can demonstrate some community support for their candidacy. Increasing the nomination deposit from $1,000 to $2,000 for Senate candidates and from $500 to $1,000 for House of Representatives candidates is reasonable and appropriate. The increase from 50 to 100 nominators required for candidates not endorsed by a political party is reasonable. It is important that unendorsed candidates be able to demonstrate community support for their candidacy.
Similarly, if unendorsed candidates wish to be grouped on the Senate ballot paper it is appropriate that each member of a Senate group be able to demonstrate community support for the grouping. The bill will increase the nominators from 50 for the whole group to 100 per candidate. As the proposed new requirement is for unendorsed candidates to have 100 nominators, they should be able to draw on this support base to secure their Senate group box.
On behalf of the committee I thank the organisations and individuals who assisted the committee during the inquiry through submissions or by participating in the round table discussion in Canberra. I also thank my colleagues on the committee for their work and contribution to this report and I thank the secretariat for their work on this inquiry. I commend the report to the House.
by leave—In rising to speak to this report from the Joint Standing Committee on Electoral Matters I would like to point out to the chamber that this is in fact a most unusual report coming from this committee, because it is unanimous. I think it is the only one to be so since this committee was formed after the last election, because normally the issues are extremely partisan and the committee report usually reflects only the views of the government and Greens members. However, on this occasion, because it sought to implement recommendations 12, 31 and 32 of the joint standing committee's report on the last election, these were provisions that the opposition did not dissent from, so we were able to look at the bill in a different way. Normally we have differing points of view from the beginning.
I think it is important to point out that the second reading speech of the minister did initially cause me, and others, to think that this bill was doing something quite radical with regard to the way that, in particular, postal vote applications are dealt with.
The minister said in his speech that 'Schedule 1 to the bill will simplify the postal vote arrangements by directing all applications to either the electoral commissioner or an assistant returning officer.' He went on to say:
Directing the majority of postal vote applications to the electoral commissioner will enable the centralised processing by computers and the centralised dispatch of postal vote packages.
When we in fact took evidence from the Australian Electoral Commission, we found that that is precisely what is happening now, and that these provisions of the bill will make not any difference whatsoever to the way in which the Electoral Commission deals with postal vote applications. In 1999 they had sought legal advice as to whether or not the existing legislation would enable them to deal with the sending out of packages in a centralised manner and they have been doing it since then. So we were somewhat mystified about the real intent of the provisions. However, it is sensible to tidy up language in the bill, and we agree to that.
But there was a most concerning part, so far as I was concerned—and that dealt with the delegation of the powers of the Electoral Commissioner. The way the system works is that political parties take the postal vote applications which are returned to them to the DRO, the divisional returning officer, and they are then sent in to the centralised system. But we did not want to see the system changed such that we had to go to some central point. That would make the system unworkable. And there is no provision in the legislation for that power to be delegated to DROs. So I sought an undertaking from the Electoral Commissioner, in whom all power is now vested, and asked him:
So you are giving me an undertaking today that you will in fact delegate to DROs?
Mr Killesteyn answered, 'Indeed.' I then said:
Good. So there will be no attempt to not delegate to them? I accept your word that you will delegate to DROs.
Mr Killesteyn said:
The process that you see as a member of parliament or, rather, will see as a candidate, where you would take your postal vote applications to your local office, will still be there.
I then added that that was fine by me because, as the chair had pointed out, this was evidence under oath. So I accepted that the practice will continue.
I think it is important that we received that undertaking, because it is on that basis that the opposition members can agree to a unanimous report on this occasion. I and the coalition do, however, believe that it would be best in some form of legislation, be it primary or subordinate legislation. I think it is important that we see that that power does in fact remain delegated to the DROs. It is important to note that another commissioner may take a different point of view and, for that reason, I would like to see it in legislative form.
The other provisions of the bill were outlined by the chairman of the committee, dealing with the increase in nomination fees to be paid when candidates nominate for either the House or the Senate. They also dealt with the fact that the 500 people who are shown as members of a political party will now have to be electors, not simply entitled to vote, and that we will also see the required number of supporters for unaligned candidates rise from 50 to 100. We concurred with those recommendations.
I now want to turn, however, to the question of the use of the term 'unsound mind'. The coalition parties have always been concerned that the major task of the Australian Electoral Commission is to keep the integrity of the roll. That is why we have voted against, and disagreed with, automatic enrolment and certain other provisions. We believe that 'unsound mind' remains a term which does have a legal meaning, because it has been interpreted. It is interesting that there have been attempts to change the provision in the act allowing for the removal of someone of unsound mind from the roll. The provision allows for that to be done at the initiation of family—but requires a medical certificate. With respect to that provision, in the belief of all committee members—indeed, from certain evidence that was given to us, including the supplementary submission from people with a disability who believed that having a provision in there at all to remove anyone from the roll in this area was a discrimination—the wording which is included in the bill would in fact result in an expansion of the number of people who could be removed from the roll.
I went back through the history of this term. After the 1996 election it was considered by the Joint Standing Committee on Electoral Matters, and they accepted the advice of the then Australian Electoral Commission that the wording not be changed. Although the Electoral Commission seems to have a different view at this stage, we believe that the earlier view they held is the correct one. Accordingly, the committee has recommended that the bill should be passed, but only after deleting the changes proposed in schedule 3 in relation to the unsound mind provision and consequential amendments. The term 'unsound mind' and the current requirements for a certificate from a medical practitioner should be retained.
I do sincerely hope that the government will pay heed to this recommendation that the committee has made because, as I said, it is quite unusual in that it is unanimously supported by all members of the committee, and indeed was supported by evidence given to us and is in accord with a decision made in Victoria to maintain similar wording. It is also consistent, as I said, with what was decided after the 1996 election, when the then Electoral Commission held that view and the then committee supported that those words should remain as the safest way to protect the integrity of the roll and protect those who wish to vote.
So I am pleased to support the recommendations of the Joint Standing Committee on Electoral Matters concerning the Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012, which thereby means that there would be support for schedules 1 and 2, but we would seek for the government to heed the recommendations and alter or amend schedule 3 to let the words 'unsound mind', for all the reasons we have both spoken about, remain.